McCone v. Courser , 64 N.H. 506 ( 1888 )

The sale of McCone's two equities as one was invalid. Gen. Laws, c. 238, ss. 5 and 6; Fletcher v. Stone, 3 Pick. 250; Webster v. Foster, 15 Gray 31, 33. It would be none the less invalid if the facts which the defendants offered to prove were established. Whatever legal or practical difficulty in making the levy existed by reason of the debtor's right, if he had it, to elect in which place he would take a homestead, or because of an uncertainty to which place his homestead right attached, it did not authorize a sale that would compel him to redeem both places or neither of them. Such a difficulty must be met in a way that will not destroy the debtor's legal right to redeem one and not the other.

Without inquiry, it is assumed, in accordance with the claim of both parties, that John A. was seized of a life estate in the premises as tenant by the curtesy. He was a party to the bargain by which Laskey was to have the unincumbered fee. His failure to join in the deed was due to ignorance that he had any interest in the premises. As against him the plaintiffs claiming under Laskey are entitled to a conveyance which will have the effect that all the parties to the transaction intended. The objection, that the bill, so far as it relates to Smith, calls for the specific performance of an oral contract for the conveyance of land, if tenable, is not taken. Newton v. Swazey, 8 N.H. 10.

Courser, when he bought Smith's title, had through Dodge, his agent in making the purchase, notice or the equivalent of notice of the plaintiffs' equitable right to a conveyance of that title, and in respect to the relief sought stands in Smith's shoes. The plaintiffs' right and the defendants' liability are not affected by McCone's release of Laskey's heirs. If Laskey had conveyed without covenants, the plaintiffs would be none the less entitled to the entire estate.

Damages for the occupation of the premises by Courser, or mesne profits, are incident to the general relief sought, and may be assessed in this proceeding. Bassett v. Company, 43 N.H. 252; Dennett v. Dennett,43 N.H. 503; Richards v. Todd, 127 Mass. 167.

Decree for the plaintiffs.

CLARK, J., did not sit: the others concurred.